IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ERIC R. WESTERFIELD, 

Petitioner, CASE NO. 2:12-CV-0631

v. JUDGE GREGORY L. FROST

WARDEN, CHILLICOTHE Magistrate Judge Kemp

CORRECTIONAL INSTITUTION, 

Respondent.

OPINION AND ORDER

Petitioner, Eric R. Westerfield, a state prisoner, filed this petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254 alleging that he is in custody in violation of

the Constitution of the United States. The case is before the Court to consider

petitioner’s objections to a recommendation from the Magistrate Judge that the petition

be denied and that this case be dismissed. For the following reasons, the Court

overrules the objections, adopts the Report and Recommendation, and dismisses the

case. 

I. Background and Procedural History

Because the background and procedural history of the case does not appear to be

disputed, the Court will summarize it only briefly. According to the exhibits to the

petition, petitioner was convicted in the Franklin County Court of Common Pleas of

one count of rape and was sentenced on December 6, 2007, to life in prison and

adjudged a sexual predator. His timely appeal was denied, see State v. Westerfield, 2008

WL 4078425 (Franklin Co. App. September 4, 2008), and the Ohio Supreme Court both

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declined to accept petitioner’s appeal and denied his motion to reconsider that decision. 

See State v. Westerfield, 120 Ohio St. 3d 1506 (February 4, 2009); State v. Westerfield, 121

Ohio St. 3d 1442 (April 8, 2009). 

More than three years later, on July 16, 2012, petitioner filed this habeas corpus

action. The Magistrate Judge recommended dismissal because the petition was not filed

within the one-year statute of limitations found in 28 U.S.C. §2244(d). Petitioner objects,

arguing that because the state court judgment was and is void, the statute of limitations

has not yet begun to run.

II. Standard of Review

If a party objects within the allotted time to a report and recommendation, the

Court “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)

(1); see also Fed.R.Civ.P. 72(b). Upon review, the Court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

III. The Law

28 U.S.C. § 2244(d) reads as follows:

(d) (1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation

period shall run from the latest of-

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

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(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented

from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

Petitioner does not claim that he filed his petition within one year of any of these

dates, assuming that the Ohio Supreme Court’s decision was a final decision within the

meaning of this statute. However, he claims that because he was convicted pursuant to an

indictment that was amended at trial, his conviction is void and there could not have been

a final judgment entered in the state court proceedings . He asserts that the amendment

to the indictment violated the United States Constitution because it was never reviewed by

a grand jury. Both aspects of his argument are incorrect.

First, this Court has specifically rejected the argument that if an alleged

constitutional defect in the state court proceedings may affect the validity of the state court

judgment, the limitations period set forth in §2244(d) is inapplicable. In Foster v. Warden,

Chillicothe Correctional Institution, 2011 WL 692231, *3 (S.D. Ohio February 17, 2011), adopted

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and affirmed Case No. 2:11-cv-131 (S.D. Ohio April 8, 2011), the Court held that 

it does not matter, for purposes of determining if the statute of limitations

has run, that petitioner claims to be in custody pursuant to a defective, void,

or illegal judgment rendered by a state court. The fact remains that this claim

had to be brought within one year of the date on which the judgment became

final and non-appealable ....

That is so, the Court reasoned, because to hold otherwise would be to undermine

substantially the statute of limitations provision applicable to habeas corpus proceedings;

many state prisoners claim to be in custody pursuant to a judgment procured in violation

of some procedure set forth in the Constitution, and if that were enough to remove the case

from the operation of the statute of limitations, there would be little left of that enactment. 

The Court relied substantially on Frazier v. Moore, 252 Fed. Appx. 1, *5 (6th Cir. October 17,

2007), where the Court of Appeals held:

In order to constitute a “judgment” under §§ 2244(d) and 2254, a state court

judgment need not be unassailable, or even prima facie correct. If a judgment

that was procured by a procedure that violated federal constitutional rights

were sufficient to render a petitioner not in custody “pursuant to the

judgment of a state court” for the purpose of §§ 2244(d) and 2254, then the

habeas regime embodied in these provisions would be substantially

undermined. Clearly this interpretation of these statutes cannot be correct.

See also Williams v. Knab, 2011 WL 2551030 (S.D. Ohio June 24, 2011), adopted and affirmed

2011 WL 3108156 (S.D. Ohio July 26, 2011). This Court finds those decisions persuasive.

Further, the predicate of petitioner’s argument is fatally flawed. His claim that the

state court judgment is void is based on the fact that the indictment was amended without

being reviewed by a grand jury. Although the United States Constitution requires that

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indictments be returned by grand juries in certain types of cases (the Fifth Amendment

states, in part, that “No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury”), “[t]he Fifth Amendment's

guarantee of a grand jury indictment in cases of capital crimes, however, has never been

incorporated into the Fourteenth Amendment and hence is not applicable to the states.” 

Watson v. Jago, 558 F.2d 330, 337 (6th Cir. 1977). The same is true, of course, for lesser

felonies. See, e.g., Spurling v. Ohio Adult Parole Authority, 2008 WL 1766792 (S.D. Ohio April

11, 2008) (charge of felony cocaine trafficking). Therefore, petitioner had no federal

constitutional right to be charged by indictment at all. If there had been a violation of his

procedural rights based on the state grand jury’s failure to consider the amendment to the

indictment, that would be purely an issue of state law, which would neither support the

grant of a writ of habeas corpus nor provide any basis for concluding that the state court

judgment is void as a matter of federal constitutional law. Consequently, the statute of

limitations does apply to this case, and petitioner did not meet its time limits. That

conclusion requires the Court to dismiss the case. 

IV. Order

For all of these reasons, petitioner’s objections (Doc. 4) to the Report and

Recommendation (Doc. 2) are OVERRULED and the Report and Recommendation is

ADOPTED AND AFFIRMED. The petition for habeas corpus is DENIED and this case

is DISMISSED.

IT IS SO ORDERED.

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 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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